Tuesday, January 08, 2013Last Update: 7:36 AM PT

USA Fights Veterans' 'Guinea Pig' Claims

OAKLAND, Calif. (CN) - The Pentagon continues to fight claims that it owes medical care to a class of veterans who were used as guinea pigs for Cold War-era drug experiments. Vietnam Veterans of America filed a class action against the Army and CIA in 2009, claiming that at least 7,800 soldiers had been used as guinea pigs in Project Paperclip. The soldiers say they were administered at least 250 and perhaps as many as 400 types of drugs, among them Sarin, one of the most deadly drugs known, amphetamines, barbiturates, mustard gas, phosgene gas and LSD. Using tactics it often attributed to the Soviet enemy, the U.S. government sought drugs that could control human behavior, cause confusion, promote weakness or temporary loss of hearing and vision, induce hypnosis and enhance a person's ability to withstand torture, according to the complaint. The veterans claim that some soldiers died, and others suffered seizures and paranoia. They say the CIA knew it had to conceal the tests from "enemy forces" and the "American public in general" because revealing it "would have serious repercussions in political and diplomatic circles and would be detrimental to the accomplishment of its mission." After two failed attempts to dismiss the action, the defendants succeeded last year in getting claims against Attorney General Eric Holder and the CIA dismissed. The Department of Defense and Department of the Army are still on the hook. In September 2012, U.S. District Judge Claudia Wilken granted the plaintiffs class action status, which could make thousands of veterans eligible for three types of relief. The trial could force government agencies to notify participants of the known health impacts of the substances they received, mandate health care for those who have suffered diseases, and guarantee due process for veterans who were denied benefits. The plaintiffs moved for partial summary judgment in December. The crux of the veterans' argument is that Administrative Procedure Act obligates the defendants to provide notice to test subjects and to provide them medical care. The Departments of Defense and the Army opposed the summary judgment in a 77-page filing last week. "In the end, plaintiffs' lawsuit amounts to no more than an inappropriate attempt to micromanage (or completely overhaul) comprehensive government programs through the courts," attorney Joshua Gardner wrote for the Justice Department. The government defendants claimed the veterans' constitutional claims are based on "skewed reading" of Defense Department regulations. "Although plaintiffs have styled much of this lawsuit as one challenging agency delay in the performance of a discrete legal obligation, it is undisputed that the government has engaged in decades-long efforts to reach out to test participants and assess their health," Gardner wrote for the defendants. The government says it used approximately 7,000 service members in the Cold War experiments, and stopped the research in 1976. It also tested mustard agents and lewisite during and shortly after World War II and tested biological agents on 2,300 Seventh-day Adventists who were conscientious objectors from the 1950s to the early 1970s. Around 2003, the Defense Department says, it renewed investigations into its Cold War drug experiments, attempting to identify service members who might have been exposed to chemical and biological agents. The defendants say the Veterans Administration and the Defense Department began meeting regularly in November 2004 to discuss this. Both agencies agreed that the Pentagon would be responsible for identifying test subjects, and the VA would locate and notify them. In 2006, the VA began sending notice letters to test participants, informing them about the tests and providing them with information about filing disability claims if they believed they were suffering from chronic health problems from the tests, the defendants say. The government says it also developed a website with information about the test programs and gave the veterans information about obtaining their test files. Because of this outreach, the government claims, the veterans cannot claim that the agencies failed to give notice to the test subjects. "The government has already engaged in substantial follow-up efforts with test participants and provided much of the very information contained in plaintiffs' definition of 'notice,'" the defendants wrote. "It has conducted multiple follow-up studies to determine whether any long-term health effects may be associated with any of the substances used in the test program, and those studies generally have not detected any such health consequences. It provided a letter to test participants for whom contact information could be found notifying them that they may have participated in tests, providing them with a means to obtain additional information about their particular testing, and informing them of [the Defense Department's] conclusion about the potential of long-term health effects." The defendants concede that the government has a legal obligation to provide health care to veterans who can prove service-related disabilities, but claim that the Veterans Administration should be responsible for health care claims. "It is undisputed that the VA provides comprehensive health care to veterans such as plaintiffs in this case," the defendants claim. "If the VA denies health care to which plaintiffs believe they are entitled, there is a statutorily prescribed judicial review scheme of such denials. "Given this comprehensive statutory and regulatory system for health care, plaintiffs cannot establish that they lack an adequate remedy for their health care claims elsewhere." The defendants also claim that the veterans failed to establish any legal authority for a right to health care from the Army or Defense Department. Judge Wilken is scheduled to rule on the motion for summary judgment on March 14. The New Yorker magazine, in a Dec. 17, 2012 article, "Operation Delirium," reported on Col. James S. Ketchum, who acknowledged testing deadly chemicals upon hundreds of soldiers during his two decades in the Army. "Next year, a class-action lawsuit brought against the federal government by former test subjects will go to trial, and Ketchum is expected to be the star witness," The New Yorker Reported.